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Thread: Faquier Co Deputy Illegal Detention of OCer?

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    Faquier Co Deputy Illegal Detention of OCer?

    New member "Who Me" made the post below in another thread. I've quoted it here for more exposure and to move discussion from the other thread.

    Open carried yesterday to Gilbert's Corner (15 and 50 intersection) to have some BBQ. First time eating there and had the pulled pork sandwich which was excellent. Not much to report beside seeing a young lady open carrying a revolver in a leather holster

    Then went to Carousel Ice Cream in Warrenton for dessert. After I got in my vehicle to get ready to leave a Fauquier County Sheriff approached and asked me to put my hands on the wheel. She asked for id and I told her where it was and her partner got it and ran my driver license. She was nice and said she believes in carrying and understood that open carrying is my right but they had received a call from someone at the ice cream place that reported a "man with a gun". I asked if she was going to talk to the person that made the call and let them know that I was doing nothing illegal and she said she would. She shook my had and said have a nice day.

    That was my first experience concerning carrying with any police since I have been open carrying for the last 2 years. I guess it was bound to happen sooner or later
    Last edited by Citizen; 08-26-2013 at 08:56 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Sounds like an illegal detention to me.

    No reasonable person is going to feel free to ignore a cop who walks up and asks you to put your hands on your wheel, no matter how nice its asked. So, I'm calling this a non-consensual encounter. A partner getting the ID only adds to it.

    And, since the cops had no RAS--illegal detention.

    My default setting is a formal written complaint for every contact--consensual or not--over my OCd gun. This calls for a formal written complaint at a minimum. Trigger their internal affairs review. Also, a mention to Philip Van Cleave and VCDL would be good. Looks like we've got a loose-cannon cop who thinks she can go around detaining people with no RAS.

    Also, FOIA the dispatch recordings and computer text in the car. She said they got a call. That means it went through dispatch.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Fauquier Free Citizen

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    Accomplished Advocate peter nap's Avatar
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    I about half agree that it was illegal but we'll never know. Did they take his gun, did he question why they wanted his ID before he gave it to them, did he ask if he was free to go.

    I guess we're just more unreasonable down here

    Now if he'd asked if he was free to go and they said "NO!"....well then you have a sho-nuff illegal detention.

    Can't hurt to complain though.
    Last edited by peter nap; 08-26-2013 at 09:32 PM.

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    Quote Originally Posted by peter nap View Post
    I about half agree that it was illegal but we'll never know. Did they take his gun, did he question why they wanted his ID before he gave it to them, did he ask if he was free to go.

    I guess we're just more unreasonable down here

    Can't hurt to complain though.
    Oh, sure we do.

    Cops is masters at withholding information and keeping their target uncertain. Any uncertainty comes from the cops and their methods.

    And, we can borrow a page from the courts. Its up to the cops to prove they had justification for the seizure.

    This cop had her chance to mention any illegal activity or suspicions. She said they had a phone call about a perfectly legal activity. Cops need and want credibility. They want us to believe they're pure as the driven snow. Fine. I believe the cop.

    Illegal detention.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Check your PMs.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Founder's Club Member Tess's Avatar
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    Quote Originally Posted by peter nap View Post
    I about half agree that it was illegal but we'll never know. Did they take his gun, did he question why they wanted his ID before he gave it to them, did he ask if he was free to go.

    I guess we're just more unreasonable down here

    Now if he'd asked if he was free to go and they said "NO!"....well then you have a sho-nuff illegal detention.

    Can't hurt to complain though.

    Why do you ask whether they took his gun for an illegal detention? The gun has no relevance in that question. The individual was detained or not.

    Now, I agree this was a detention - when the officer told him to put his hands on the wheel, she took away his freedom of movement.

    I still think the fact she waited until he was in the car to ask for ID shows motivation. It seems deliberate, to me.
    Laws alone can not secure freedom of expression; in order that every man present his views without penalty there must be spirit of tolerance in the entire population. -Albert Einstein

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Tess View Post
    Why do you ask whether they took his gun for an illegal detention? The gun has no relevance in that question. The individual was detained or not.

    Pardon me for asking it at all Tess.

    It's just that there was a gun taking detention in that county last month...but you're right...so what.... and it doesn't involve this part of the world anyway.
    They took his gun, cuffed him and sat him in the car while they ran his information....Now that's DETAINED.

    OK everyone...It was an illegal detention, no need to discuss it further It's called an "I'm scared" detention.
    Ed, make this a sticky please.
    Last edited by peter nap; 08-27-2013 at 09:15 AM.

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    Nuc65 wrote in the NoVA OC thread: The officer still must have PC or RAS TO DEMAND ID. One arguably gave consent to illegal search and seizure when you told her where your ID located. A better response would have been I don't consent to any search or seizure of my person or property. Am I being detained? Am I free to go?

    Just sitting there does not argue for operation of a motor vehicle.
    Not particularly replying to Nuc; just using his post as a springboard.


    There is an overlap here. Cops can Terry Stop a car. I've read a number of case summaries where cops observed behavior that gave reasonable articulable suspicion (RAS) of an offense, and then Terry Stopped the car and its occupants. They need not wait until a traffic offense occurs.

    For example, cops observe what appears to be a hand-to-hand drug transaction from a car at a curb. Then the car drives off. Cops then stop the car a couple blocks away on the drug suspicion, no traffic offense intervening.

    I agree with posters who say the cop needs a car-related offense (moving violation, over-tinting, safety equipment violation, etc) to seize and demand driver's license. Such an observed offense is essentially probable cause (PC) as I understand things. If they want to Terry Stop the car, then RAS is needed just like any other Terry Stop controlled by Terry v Ohio and subsequent cases.

    If cops wait for a traffic offense to stop a car for which they think they already have RAS for a Terry Stop, really what they are doing is strengthening their case. Their RAS might be thrown out by a judge during a pre-trial suppression hearing, but a traffic offense gives PC for the stop. But, I am aware of no case law that requires them to wait for PC/observed traffic offense.
    Last edited by Citizen; 08-27-2013 at 09:41 AM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Quote Originally Posted by Tess View Post
    Now, I agree this was a detention - when the officer told him to put his hands on the wheel, she took away his freedom of movement.
    Tess and I frequently differ of opinion on certain matters and affairs, but this ain't one of them.

    "Put your hands on the wheel" (read: where I can see them) is a detention. Taking the ID (was the vehicle in motion AND on a public street?) is a seizure.

    Who Me? was detained AND seized. That is a 4th Amendment violation in my book. A letter to the department does not send a strong enough message from where I'm standing.
    The quiet war has begun, with silent weapons
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    Quote Originally Posted by wylde007 View Post
    Tess and I frequently differ of opinion on certain matters and affairs, but this ain't one of them.

    "Put your hands on the wheel" (read: where I can see them) is a detention. Taking the ID (was the vehicle in motion AND on a public street?) is a seizure.

    Who Me? was detained AND seized. That is a 4th Amendment violation in my book. A letter to the department does not send a strong enough message from where I'm standing.
    I surprised at you Wylde!

    Just how does saying "Put your hands on the wheel" take away his freedom of movement. Was she pointing her gun at him? What's she going to do if he doesn't put his hands on the wheel, stamp her little foot at him?

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    Just a few comments for new readers.

    There are reams of court cases about whether a certain set of circumstances amounted to a temporary investigative detention. In those cases, the courts are deciding whether the police encounter was consensual. Meaning, did the cop seize the person verbally? Or, was the citizen free to go, but cooperated with the cop anyway?

    Now, to see this next point, you have to step back and look at the big picture, reading between the lines, correction, reading between the court cases. Big picture: the only reason the courts are deciding these cases is because it is unclear from the events of the encounter whether the citizen was temporarily seized or not.

    Police know this. Police are experts at keeping the citizen uncertain as to his status during an investigatory contact. They like to do it for at least two reasons we've identified. First, if the citizen is uncertain whether he is free to go, he'll remain even if the cops can't legally keep him. Second, if the encounter can be ruled consensual, its much harder for the defense attorney to get the judge to suppress evidence.

    So, why let the cop have the initiative and wait for him to tell you whether you're seized. If you ask, chances are good he'll just dodge the question. They do this all day long, every day. Don't think they're not masters at that this game. So, why play their game? Why grant them the initiative by depending on them to declare you are seized? They love your uncertainty--it plays right into their hands and benefits them, especially if they do not actually have legal justification to detain you.

    Take some initiative away from them--politely declare that you refuse consent to an encounter: "No offense officer, I know you're just doing your job, but I do not consent to an encounter with you." That erases all question about whether the encounter is consensual. Remember, the only reason courts are having to dig in and look at sets of indicators and circumstances and make rulings is because it wasn't clear. Your express refused consent erases all that, it undercuts all those court cases.

    So, just refuse consent to the encounter itself.

    And, if the cop asks even one more question, just proceed on the entirely reasonable assumption that you are seized.

    Cop: "If you're doing nothing wrong, why won't you consent to an encounter."

    OCer: "Why am I being detained?"

    See how that question just moves right along from the assumption of a detention? Don't let the cop shake your certainty--its your certainty, not his. For example,

    Cop: "Nobody said you're detained, sir."

    OCer: "I refused consent, so it can't be a consensual encounter. Am I free to go?"

    You see, no matter how the cop wiggles and dodges, it cannot possibly be a consensual encounter because you told him at the very first that you didn't consent to the encounter.

    The longer he wiggles and dodges, if he does not have genuine RAS, the deeper he digs himself for a formal complaint or lawsuit. And, if he does have genuine RAS, he's not getting any investigating done while he's playing his word games on you.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    I've lived here about six years now and have never had anything remotely close to this happen. In fact I've never had anything happen. I carry every where every day, the worst thing I've had is overhearing someone in line behind me mumble something about legality. The dog and I do stop for ice cream a couple times a week, might have to do that more often and put fresh batteries in the recorder.

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    Quote Originally Posted by altajava View Post
    I've lived here about six years now and have never had anything remotely close to this happen. In fact I've never had anything happen. I carry every where every day, the worst thing I've had is overhearing someone in line behind me mumble something about legality. The dog and I do stop for ice cream a couple times a week, might have to do that more often and put fresh batteries in the recorder.
    The Fauquier Sheriff's Department doesn't have a sterling reputation. There are a number of cases where they have abused OC'ers. At least one that involves a long time member here and there was NO QUESTION, that he was detained.

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    Quote Originally Posted by peter nap View Post
    Just how does saying "Put your hands on the wheel" take away his freedom of movement?
    I'll bite.

    It was a detention under color of authority. Just about anyone in a normal situation when confronted with an "order" by uniform law enforcement to "Put your hands on the wheel" (where I can see them) knows good and well that any "furtive gesture" is all a cop needs to declare you a threat to his/her safety and escalate the encounter, no matter what their impetus for initiating it.

    It is I who am surprised at you, sir!

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    Quote Originally Posted by wylde007 View Post

    It is I who am surprised at you, sir!

    I don't know why. Damned if I'd put my hands on the wheel. He wasn't doing anything illegal, she didn't have her gun out and there wouldn't be any reason to listen to her".

    If she had escalated it, there wouldn't be any question if it was an unlawful detention or not.

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    We all know how short a trip it is from "Put your hands on the wheel" to "Put your godd*mn hands on the wheel right now!" accompanied by the unmistakable sound of a Glock 21 clearing a Level-3 retention holster.

    "Stop resisting!"
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by wylde007 View Post
    We all know how short a trip it is from "Put your hands on the wheel" to "Put your godd*mn hands on the wheel right now!" accompanied by the unmistakable sound of a Glock 21 clearing a Level-3 retention holster.

    "Stop resisting!"
    Yep, that's when you put your hands on the wheel.

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    Quote Originally Posted by wylde007 View Post
    We all know how short a trip it is from "Put your hands on the wheel" to "Put your godd*mn hands on the wheel right now!" accompanied by the unmistakable sound of a Glock 21 clearing a Level-3 retention holster.

    "Stop resisting!"
    I'm pretty inclined to play their own game against them.

    Cop: "Good afternoon, sir. Would you please put your hands on the wheel."

    Me: "I am complying with your order, officer. But, I do not consent."

    Just take the initiative away from the cop, take away their deliberate attempt to confuse the issue by phrasing it as a request. Just treat it as an order and say so, while refusing consent.

    Heck, you might as well go ahead and ask him to confirm--for the voice-recorder--that you are complying with his order: "Is this where you want my hands officer? On the wheel like this?"
    Last edited by Citizen; 08-28-2013 at 01:09 AM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member wylde007's Avatar
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    Quote Originally Posted by Citizen View Post
    Heck, you might as well go ahead and ask him to confirm--for the voice-recorder--that you are complying with his order: "Is this where you want my hands officer? On the wheel like this?"
    Assuming, of course, you don't get the one who was late to the free donuts-and-coffee presentation that morning, whose further response is "Oh, a smart guy, eh? Well, how about I just (insert other illegal but unfortunate act here) while we see just how funny you are, Mr. funny man."
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by wylde007 View Post
    Assuming, of course, you don't get the one who was late to the free donuts-and-coffee presentation that morning, whose further response is "Oh, a smart guy, eh? Well, how about I just (insert other illegal but unfortunate act here) while we see just how funny you are, Mr. funny man."
    User is representing a member here in just such a case.....The cop, chief of police, city and everyone else involved will be appearing in court to explain why those comments shouldn't add to Dan's clients retirement fund.

    It's not good to be a smart ass cop these days!

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    Re: Faquier Co Deputy Illegal Detention of OCer?

    I sought out an officer for a criminal/domestic issue several months ago that was reported to me. The matter was escalated to a different county (long story). Unfortunately, I lost the initial PWC officers business card. He told me he thought recording was illegal without his consent. I explained otherwise to which he was very receptive and asked me to send him the law references because he wanted to look into it more. I'd like to assume he did look into it, but as I say I lost his info. Unfortunately athe contact did not go through dispact (serious privacy reasons), so afaik there is no log.


    I know several officers who have told me they have been trained to assume they are always being recorded, audio and video.

    I think that would be a wise assumption. Somethibg the Chiefs would drill into officers so they don't cost us taxpayers money.

    Blade



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    So if I call 911 and report a "man with a car" they will send a LEO to check it out and illegally detain him to see if the man is allowed to have the car?

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    Re: Faquier Co Deputy Illegal Detention of OCer?

    Quote Originally Posted by speed41ae View Post
    So if I call 911 and report a "man with a car" they will send a LEO to check it out and illegally detain him to see if the man is allowed to have the car?
    Probably not, unless you include the magic word "suspicious. "

    Blade


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    I'd like to know more about it from the person who was detained. In my opinion, they shouldn't bother to send someone out when the call does not report any kind of illegal activity; on the other hand, if someone had to be sent, then the person making the call should be charged with the crime of making a false report to law enforcement.
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